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At Your Defense: Does Tort Reform Minimize Defensive Medicine?

Reyes, Carlo MD, JD

doi: 10.1097/01.EEM.0000461013.23083.0d
At Your Defense

Dr. Reyesis the vice chief of staff and the assistant medical director of emergency medicine at Los Robles Hospital in Thousand Oaks, CA. He is also a clinical professor in emergency medicine and pediatrics at Olive View/UCLA Medical Center, a health law attorney with Boyce Schaeffer Mainieri, LLP, in Oxnard, CA, and the founder and CEO of Health-e-MedRecord, a patient-centered and emergency physician-designed EHR solution. (www.health-e-medrecord.com)

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I passionately addressed in October the threat Proposition 46 posed, not only on California's noneconomic damages cap but also on similar state legislation throughout the country. (“Raising Noneconomic Damages Cap Bad for EPs and Patients Alike,” EMN 2014;36[10]:18; http://bit.ly/1v6MvMB.)

That same month, Waxman et al. concluded in a Rand study that “legislation that substantially changed the malpractice standard for emergency physicians in three states had little effect on the intensity of practice, as measured by imaging rates, average charges, or hospital admission rates.” (New Engl J Med 2014;371[16]:1518; http://bit.ly/1viLBPK.)

What gives? Does tort reform minimize defensive medicine? If so, why did emergency physician practice intensity fail to decrease in the three states that made it more difficult for plaintiff attorneys to prove medical negligence?

The Waxman study examined the records of 3.8 million Medicare patient visits in 1,166 emergency departments from 1997 to 2011. The three states, Georgia, Texas, and South Carolina, changed the definition of negligence from ordinary to gross negligence, forcing plaintiffs to prove that doctors consciously disregarded the need to exercise reasonable care in treating patients. Despite such reform, which makes it virtually impossible to find providers negligent, practice intensity did not decrease within the 14-year period of the study. Is there any purpose for tort reform, then?

Does defensive medicine even exist? Anyone who practices clinical medicine can easily answer this question: YES. How many times have we ordered a test when we truly believed in our heart of hearts that the test was unnecessary? Defensive medicine exists when outside forces influence providers' decision-making to order a test that is not clinically indicated. The definition of defensive medicine should not imply merely the fear of litigation but also fear of patient dissatisfaction and loss of job security. Defensive medicine drives up health care costs when providers order unnecessary tests to avoid any potentially negative consequences on the provider: malpractice litigation, patient dissatisfaction, and administrative scrutiny that may threaten a provider's practice.

Numerous examples of administrative scrutiny exist: overutilizing blood cultures and premature administration of antibiotics to meet the pneumonia core measure; overordering narcotics in the futile attempt to secure higher patient satisfaction scores; and shot-gun ordering tests at triage during in an attempt to achieve superior ED metrics. Multiple factors end up influencing emergency providers to overutilize resources. This meshwork of influence created by these factors makes evident that removing any one factor would not diminish the overall driving force to overutilize medical resources.

Defensive medicine is a habit. And like habits, they start innocently but are provocatively difficult to break. The time it takes to adopt a defensive approach to clinical decision-making is the same time it takes for your colleague to complete the next sentence: “Remember that patient you sent home yesterday?” In poetic contrast, it may take years for us to unlearn it. Defensive medicine becomes ingrained into our intellectual fiber after we endure a malpractice action that painfully and publicly exposes our diagnostic missteps. We are reminded of our time in court with every near-miss, every difficult case, and every colleague who experiences the same.

These are the empirical lessons that clinicians experience and that have lasting effects more powerful than any evidence-based study telling us otherwise. In fact, the average physician spends more time in malpractice litigation than he does completing medical school: 11 years. A study that demonstrates that tort reform does not alter practice intensity does not necessarily prove that tort reform has no impact on defensive medicine. More factors than just fear of litigation cause us to overutilize, and the fear of litigation may profoundly change practice behaviors that persist even after the threat of litigation is removed.

Is practice intensity a surrogate for quality? Tort reform influences myriad provider decisions: where to practice, what specialty to practice, and even whether to participate in a hospital's call panel, which means tort reform directly affects a community's access to primary and specialty care. The absence of tort reform and the specter of litigation tend to induce providers to order more tests when clinical decisions are complex, even in situations where tort reform has less influence on a provider's clinical decisions (i.e., when defensive medicine is firmly adopted as habit by the clinician).

It is important to acknowledge that quality has many surrogates when evaluating practice intensity as a surrogate for quality: mortality, 60-day readmission rates, and medication compliance, to name a few. Practice intensity is actually a measure of efficiency and only one aspect of quality. Wisdom teaches us, however, that focusing too much on efficiency can actually threaten quality. When you order that antibiotic under three hours or quickly evaluate a patient in under 20 minutes, it won't translate to quality if you hurried up to order the wrong test.

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